In principle, pursuant to Article 64 of the National Pension Act, a spouse who satisfies certain requirements for the payment of pension may receive pension benefits by equally dividing the amount of the old age pension corresponding to the period of marriage among the period of entitlement for the National Pension of the other spouse during the period of entitlement for the National Pension. However, according to Article 64-2(1) of the National Pension Act (hereinafter “Special Provisions”), the division ratio of pension may be determined differently through consultation with the divorce party or the court’s judgment in the procedure of division of property following consultation or judicial divorce. This is to respect the intention of the parties and

In full view of the legal nature of the right to receive pension benefits of a divorced spouse under the National Pension Act and the legislative purport thereof, in order to deem the “case where separate determination on the division of pension is made” as stipulated in the Special Provision, there is an express agreement between the divorced parties to determine the division ratio of pension in the consultation or the division of property following judicial divorce, or the court’s decision was clearly revealed. On the contrary, in the case where the agreement between the divorced parties or the written decision including the protocol of mediation does not expressly state the division ratio of pension, it should not be readily concluded that the divorce spouse has given up his/her right to receive pension or consented to the setting of the ratio disadvantageous to himself/herself, or that there was a court judgment on such content.

1. A. Article 64(1) of the National Pension Act provides that “If a person who has been married for at least five years is divorced from his/her spouse (Article 64(1)1), a person who has been his/her spouse shall be an old age pension beneficiary (Article 64(2)2), and a person who has been his/her spouse shall be eligible to receive a specified amount of pension divided by a former spouse’s old age pension during his/her lifetime (Article 60(3)).” Article 64(2) of the National Pension Act provides that “The amount of divided pension shall be the amount calculated by equally dividing the amount of pension corresponding to the period of marriage among the amount of old age pension (excluding the amount of dependent pension benefits) of a former spouse.”

Meanwhile, Article 64-2(1) of the National Pension Act provides that “If the division of a pension is separately determined pursuant to Article 839-2 or 843 of the Civil Act, the same shall apply thereto, notwithstanding Article 64(2).” Article 64-2(2) of the same Act provides that “If the division of a pension is separately determined pursuant to Article 839-2 or 843 of the Civil Act, the proportion of division, etc. shall be reported to the Service.”

B. The right to receive a divided pension of a divorced spouse under Article 64 of the National Pension Act allows the divorced spouse to receive liquidation and distribution by recognizing the portion of his/her contribution to the formation of the pension with respect to the right to receive an old age pension that he/she has acquired during the marriage. On the other hand, the purport of ensuring a certain level of old age income based on the other spouse’s right to receive an old age pension for his/her spouse who was unable to join the national pension due to family labor, etc. (see Constitutional Court en banc Decision 2015Hun-Ba182, Dec. 29, 2016). This is distinct from the right to claim a division of property under the Civil Act, and is the unique right of a divorced spouse who can receive directly from the National Pension Service under the

In principle, pursuant to Article 64 of the National Pension Act, a divorce spouse who satisfies certain requirements for supply and demand may receive pension benefits by equally dividing the amount of the old age pension corresponding to the period of marriage among the period of entitlement to the National Pension of the other spouse during the period of entitlement to the National Pension. However, according to the Special Provision, the division ratio of pension may be separately determined by a divorce party’s agreement or a court’s judgment in the procedures for division of property following consultation or judicial divorce. This is intended to respect the parties’ intent and promote concrete feasibility considering the unique nature of individual cases (see Constitutional Court en banc Decision 2016Hun-Ma54, Apr

C. In full view of the legal nature of the right to receive the divided pension of a divorced spouse under the National Pension Act and the legislative purport of the Special Provision, in order to deem the “case where separate determination on the division of pension is made” as stipulated in the Special Provision, there is an express agreement or a court’s decision to separately determine the division ratio of pension between the divorced parties in the consultation or judicial divorce procedure. On the contrary, in a case where the court’s decision, including a written agreement or a protocol of mediation, does not specify the division ratio of pension between the divorced parties, it should not be readily concluded that the divorce spouse has waived his/her right to receive the divided pension or agreed to set the ratio unfavorable to himself/herself, or that there was a court judgment with such content.

2. According to the reasoning of the lower judgment, the following facts are revealed.

A. On November 5, 1997, the Plaintiff married with Nonparty 1 and made his child Nonparty 2. On September 19, 2016, the Plaintiff brought a lawsuit seeking divorce, consolation money, division of property, etc. against Nonparty 1, and thereafter, filed a counterclaim seeking divorce, consolation money, division of property, etc. against Nonparty 1 (hereinafter “instant divorce lawsuit”).

B. While the Plaintiff and Nonparty 1 were divorced on September 29, 2017 during the divorce lawsuit in this case, the Plaintiff and Nonparty 1 were divorced from each other, but at the same time the Plaintiff received the registration of ownership transfer regarding the instant apartment as a result of the division of property, paid KRW 170 million to Nonparty 1, and adjusted the details of Nonparty 2’s child support, who is a minor’s female (hereinafter “instant conciliation”).

C. Paragraph (8) of the instant protocol provides that “The Plaintiff’s remaining principal claim and Nonparty 1 waives the remainder of the counterclaim,” and Paragraph (9) provides that “The Plaintiff and Nonparty 1 shall not claim consolation money and division of property related to the divorce of this case against the other party in the future except as otherwise provided in the above protocol (hereinafter “instant liquidation clause”).”

D. On November 1, 2017 after the instant conciliation was completed, Nonparty 1 filed a prior claim for a divided pension under Article 64-3 of the National Pension Act with the Defendant on November 9, 2017. On November 9, 2017, Nonparty 1 submitted to the Defendant a separate report on the division ratio of pension under the National Pension Act, along with the instant conciliation protocol, the Plaintiff’s division ratio of pension under the National Pension Act was 100%, and Nonparty 1’s division ratio was 0%.

E. On November 9, 2017, the Defendant notified the Plaintiff that the instant protocol does not meet the requirements for separate determination of the division ratio on the ground that the division ratio does not separately stipulate the division ratio (hereinafter “instant refusal disposition”).

3. On the grounds delineated below, the lower court deemed that the Plaintiff’s pension split ratio was 100% and 0% of Nonparty 1’s split ratio as illegal for the following reasons.

A. After the enactment of the Special Provision, it is possible for a divorce party to waive his right to pension payment and to vest one spouse in the other spouse when the divorce party claims division of property under the Civil Act.

B. At the time of the instant conciliation, the Plaintiff and Nonparty 1 could have sufficiently predicted their right to pension payment under the National Pension Act for the division of property. In the course of divorce, there is no reason to treat such right to pension payment differently from other couple’s joint property (including omitted or concealed property).

C. If a divorce party adjusts the so-called “settlement clause” with respect to the division of property, it is consistent with the intent of the parties that the right to receive pension should be applied to the right to receive pension as well as the other couple’s common property and that the right to receive pension should not be claimed in the future. Rather, in order to exclude the application of the “settlement clause” with respect to the right

D. In light of both claims of the instant divorce lawsuit, the details and details of the conciliation, specific conciliation provisions, etc., the division of property between the Plaintiff and Nonparty 1, including the right to receive pension under the National Pension Act, shall be deemed final and conclusive.

4. A. However, examining the above facts in light of the legal principles as seen earlier, it is difficult to accept the judgment of the court below for the following reasons.

1) Although a divorced party may freely determine the division ratio, etc. of pension in the process of division of property pursuant to the Special Provision, it is not necessarily required to separately determine the division ratio, etc. Considering that the right to receive the divided pension of the divorced spouse is an inherent right recognized under the National Pension Act, the right to receive the divided pension should naturally be deemed to belong to the divorced spouse, unless otherwise expressly stipulated in the division of property in the divorce procedure.

2) Since the instant liquidation clause does not allow the Plaintiff and Nonparty 1 to file a claim for the division of property against the other party in the future regarding the divorce of this case, the scope of application is limited to the prohibition of the claim for division of property between the other party with respect to the other party’s property omitted or concealed in the process of division of property at the time of divorce. Therefore, it is difficult to view the instant liquidation clause to apply even to Nonparty 1, the divorce spouse, who exercises his own right against the National Pension Service

3) There is no indication that the Plaintiff and Nonparty 1 determined the division ratio, etc. of pension differently from that of Article 64(2) of the National Pension Act. Moreover, in light of the Plaintiff and Nonparty 1’s claim on the division of property, etc. contained in the complaint, preparatory documents, counterclaim and preparatory documents, etc. submitted by the attorney-at-law, or the division ratio and content of the division of property following the instant conciliation, there is no indication that Nonparty 1 decided to waive the right to receive the divided pension (0% of the division ratio) in the division of property in the division of property.

B. In so determining, the court below erred by misapprehending the legal principles on the legal nature of entitlement to a divided pension under the National Pension Act or the interpretation of the Special Provision, etc., which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating

Justices Noh Jeong-hee (Presiding Justice)